Michael Ruscigno, a member of Local 802, filed a pre-election
protest pursuant to Article XIII, Section 2(b) of the Rules for the 2000-2001
IBT International Union Delegate and Officer Election ("Rules")against Ritter Sysco Foods ("RSF"). The protester alleges that
on October 1, 2000, RSF improperly prevented Ruscigno and IBT member Mike
Masterson from distributing campaign literature to IBT members in the parking
lot at its facility on Theodore Conrad Drive in Jersey City, New Jersey.
Ruscigno alleges that RSF’s conduct violates Article VII, Section 11(e) of the
Rules.

Michael Ruscigno is a member of IBT Local 802, and Mike
Masterson is a member of Local 641. At 6:00 p.m. on October 1, Ruscigno and
Masterson arrived at RSF’s Jersey City facility for the purpose of soliciting
support for Tom Leedham’s candidacy for IBT General President. IBT Local 863
represents RSF’s employees. RSF’s night shift workers arrive for work at
around 7:00 p.m. Ruscigno and Masterson intended to solicit support among the
arriving night shift workers. They had previously solicited support among RSF’s
employees in the RSF employee parking lot in Jersey City in August 2000 without
incident.

Ruscigno and Masterson entered the gate to the RSF parking
lot on October 1 in their car, which they parked in a visitor section of the
lot. There was no guard at the gate surrounding the lot. They then began handing
out Convoy Dispatch and other materials that they were using to solicit support
for Leedham’s candidacy. After about 10 minutes, a guard approached and asked
them what they were doing. They explained that they were campaigning for an IBT
candidate, and showed him a copy of a protest decision that Ruscigno had
obtained against another employer. The guard said that he did not care about
that and had been told to look out for IBT campaigners. Ruscigno said that they
were not disrupting company operations, and the guard replied that they were
because the company did not want anyone to know about this. The guard told them
they had to leave.

Ruscigno and Masterson refused. The guard made a telephone
call and two other persons appeared. They also told Ruscigno and Masterson to
leave, and said they had spoken to the company’s vice president of operations,
Rick Hutter, and had called the police. They refused to look at Ruscigno’s
protest decision. Soon thereafter, the police arrived. Ruscigno showed the
police a copy of the protest decision. The police noted that it did not involve
RSF and told them they would have to leave the property. Ruscigno and Masterson
did so. They stood outside the gate to the company property for a few minutes.
Hutter drove up during this time and stopped to talk to them. He told Ruscigno
and Masterson that neither side in the Teamsters election would be allowed to
campaign on company property. He refused to look at Ruscigno’s protest
decision.

RSF, through its counsel, did not contest the protestor’s
factual allegation that parking lot access for campaign purposes had been
denied. Instead, RSF claims that there is nothing in the law that gives the
Election Administrator authority to require an employer to allow non-employees
on its property for IBT campaign purposes.[1]

Analysis and Conclusion

Article VII, Section 11(e) of the Rules states that
"candidate[s] for delegate or alternate delegate and any member of the
candidate’s Local Union may distribute literature and/or otherwise solicit
support in connection with such candidacy in any parking lot used by that Local
Union’s members to park their vehicles in connection with their
employment." Section 11(e) further provides that "candidate[s] for
International office and any Union member within the regional area(s) in which
said candidate is seeking office may distribute literature and/or otherwise
solicit support in connection with such candidacy in any parking lot used by
[IBT] members to park their vehicles in connection with their employment in said
regional area(s)." IBT members have the reciprocal right under the Article
VII, Section 11(e) of the Rules to be so solicited and to receive
literature offered for distribution.

These rights are available only in connection with
campaigning during the 2000-2001 International Union delegate and Officer
elections conducted pursuant to the Consent Order[2]. These campaign rights apply
"only during times when the parking lot is normally open to employees"
and "do not extend to campaigning which would materially interfere with the
normal business activities of the employer." Further, these rights
"are not available to an employee on working time, [and] may not be
exercised among employees who are on working time…" Additionally, the
employer "may require reasonable identification to assure that a person
seeking access to an employee parking lot pursuant to th[e] rule is a candidate
or other [IBT] member entitled to such access." Article VII, Section 11(e)
also provides that nothing in its provisions "shall entitle any candidate
or other [IBT] member to access to any other part of premises owned, leased,
operated or used by an employer or to access to a parking lot for purposes or
under circumstances other than as set forth herein."[3]

These limited access rights are "presumptively
available, notwithstanding any employer rule or policy to the contrary, based
upon the Election Administrator’s finding that an absence of such rights would
subvert the Consent Order’s objectives of ensuring free, honest, fair, and
informed elections and opening the Union and its membership to democratic
processes." This presumption, however, may be rebutted by the employer’s
demonstration "that access to Union members in an employee parking lot is
neither necessary nor appropriate to meaningful exercise of democratic rights in
the course of the 2000-2001 election." Further, "[a]n employer seeking
to deny access to Union members in an employee parking lot may seek relief from
the Election Administrator at any time."

The limited-access rule is a necessary infringement upon
employer property rights, and is limited so that such rights are infringed upon
only to the extent necessary to implement the Consent Order goal of providing
for "free, fair and democratic election[s]." United States v. IBT,
896 F. Supp. 1349, 1367 (S.D.N.Y. 1995), aff’d, 86 F.3d 271 (2d Cir.
1996). There, Judge Edelstein approved the limited-access rule, finding it
"crucial to the achievement" of such an election process. Id.
at 1367.

We find that RSF violated these provisions of the Rules here.
RSF’s denial of parking lot access is undisputed. Nor is there any evidence
that the protestor’s presence in the RSF employee parking lot interfered with
or disrupted RSF’s operations in any way. The employees with whom the
petitioners were attempting to interact were those either on their way to or
from work or on break. Such access is precisely the kind of campaign activity
permitted by the Rules.

Accordingly, the protest is GRANTED.

Remedy

When the Rules have been violated, the Election
Administrator "may take whatever remedial action is appropriate."
Article XIII, Section 4. In fashioning the appropriate remedy, the Election
Administrator considers the nature and seriousness of the violation, as well as
its potential for interfering with the election process. Based on the foregoing,
the Election Administrator orders RSF to cease and desist from any denial of
access to IBT members to its employee parking lots in violation of Article VII,
Section 11(e) of the Rules.

An order of the Election Administrator, unless otherwise
stayed, takes immediate effect against a party found to be in violation of the Rules.
Lopez, 96 EAM 73.

Any interested party not satisfied with this determination
may request a hearing before the Election Appeals Master within two (2) working
days of receipt of this decision. The parties are reminded that, absent
extraordinary circumstances, no party may rely in any such appeal upon evidence
that was not presented to the Office of the Election Administrator. Requests for
a hearing shall be made in writing, shall specify the basis for the appeal, and
shall be served upon:

Kenneth Conboy

Election Appeals Master

Latham & Watkins

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon all
other parties, as well as upon the Election Administrator for the International
Brotherhood of Teamsters, 727 15th Street NW, 10th Floor,
Washington, DC 20005, all within the time period prescribed above. A copy of the
protest must accompany the request for hearing.

William A. Wertheimer,
Jr.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy

Lois Tuttle

2000EAD44

DISTRIBUTION LIST VIA UPS NEXT DAY AIR:

Patrick Szymanski

IBT General Counsel

25 Louisiana Ave. NW

Washington, DC 20001

Bradley T. Raymond

Finkel, Whitefield, Selik,

Raymond, Ferrara & Feldman

32300 Northwestern Highway

Suite 200

Farmington Hills, MI 48334

J. Douglas Korney

Korney & Heldt

30700 Telegraph Road

Suite 1551

Bingham Farms, MI 48025

Barbara Harvey

645 Griswold

Penobscot Building

Suite 1800

Detroit, MI 48226

Tom Leedham

18763 South Highway 211

Molalla, OR 97038

Betty Grdina

Yablonski, Both & Edelman

Suite 800

1140 Connecticut Ave. NW

Washington, D.C. 20036

Teamsters Local 802

41-20 Crescent Street

Long Island City, NY 11101

Teamsters Local 641

714 Rahway Avenue

Union, New Jersey 07083

Michael Ruscigno

42 B2 West 23rd Street

Bayonne, New Jersey 07002

Ritter Sysco Foods

20 Theodore Conrad Drive

Jersey City, New Jersey 07306

Carmine A. Iannaccone

Epstein, Becker & Green P.C.

Two Gateway Center

12th Floor

Newark, New Jersey 07102

[1]RSF has not claimed that special circumstances justify a limitation on
the campaign access rights established by the Rules.

[2]The “Consent Order” as that term is used in the Rules
means “the March 14, 1989 agreement approved by the [United States District]
Court [for the Southern District of New York, the Honorable David N. Edelstein
presiding, and] entered into between and among the United States Government,
the International Union and others in the case of United
States of America v. International Brotherhood of Teamsters, et al., 88
Civ. 4486 (DNE)(S.D.N.Y.), as amended, and all subsequent opinions, rulings
and orders interpreting it.”Rules,
Definition 8.

[3]Separately, Article VII, Section 11(f) of the Rules
provides that “an employer’s discrimination in permitting access to its
property shall constitute an improper contribution to the candidate(s) who
benefit from such discrimination.”